Legal Information or Legal Advice? -Guidelines for Court Clerks- Presented by: Jay Q. Sturgell Court Assistance Officer First Judicial District Idaho Institute for Court Management October 22, 2014

The Big Question Why am I here (in this class)? Why should I care?

Session Objectives 1. Define Legal Information 2. Define Legal Advice 3. Distinguish Between them. Idaho Court Assistance Services3

YOUR ROLE IN THE JUDICIARY Do you sometimes feel like this?

Providing Information and Assistance 5

CONFIDENCE IN THE COURTS “ Court Clerks play a critical role in ensuring public confidence in our judicial system. For most people who come to court, you, as a court clerk will be their primary point of contact with that system-not a judge, or a lawyer, or a court administrator.” “ What you do and what you say to these individuals should deliver a clear and very critical message which is, our courts are open to everyone and are here to serve the people.” Justice Joel Horton

Legal Advice vs. Legal Education This is not mystical secret knowledge, there is a bright line here, a safe harbor. Ask any questions you need to. By the end of this session today you should have no questions about the difference between education and advice, and be able to help more people with confidence.

KEY CONCEPTS ACCESS CUSTOMER SERVICE PROVISION OF ACCURATE INFORMATION PRINCIPLES OF EQUALITY, IMPARTIALITY & OPENESS

ACCESS Our doors are guaranteed to be open to all. Not familiar territory If customers do not understand how to use the system, and we don’t tell them, we are denying them access. By providing access, we advance the administration of justice.

CUSTOMER SERVICE This is why we are in this business. We are competent, cooperative, and we do all we can to assist in a timely manner.

PROVISION OF ACCURATE INFORMATION The Court is obligated to provide accurate information. Accessibility is affected by this accuracy. Small mistakes affect people’s lives.

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PRINCIPLES OF EQUALITY, IMPARTIALITY & OPENESS Third Branch of Government Every Citizen has a Right to the Same Excellent Service our Court System can Provide. Idaho Court Assistance Services13

CONFIDENCE IN THE COURTS Your assistance to unrepresented litigants and your application of these principles furthers our goals of increasing the public’s trust and confidence in the Judiciary.

CLERKS CANNOT GIVE LEGAL ADVICE

16 Definitions Legal information Facts about the law and the legal process Legal advice Advice about the course of action a client should take to further his or her own best interests

17 Definitions “Advice” means an opinion or recommendation offered as a guide to action, conduct, etc.

18 General Guidelines Legal information Staff should answer questions that call for factual information – questions that start with “who,” “what,” “when,” “where,” or “how.” Legal advice Staff should not answer questions that call for an opinion about what a litigant should do – questions that contain the words “should” or “whether.”

19 General Guidelines Legal information Staff should tell a litigant how to bring an issue to the attention of the court. Legal advice Staff should not suggest whether it is wise to bring that issue before the court, how best to present the issue, or how the judge is likely to decide the case.

20 General Guidelines If you don’t know, don’t guess. Even if you would be allowed to provide the information if you knew it, you must say “I don’t know” if you are not sure. Refer these questions to a supervisor.

21 General Guidelines Legal information Staff should inform a litigant of his or her options and the steps to carry out an option Legal advice Staff should not suggest which option the litigant should pursue

22 General Guidelines Staff can explain common, routinely employed court rules and procedures Staff cannot suggest which of several available procedures a litigant should follow Staff should not attempt to apply a rule to the facts of a litigant’s case

Idaho Court Assistance Services23 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

Idaho Court Assistance Services24 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

What does “Proof of Service” mean? You answer: A.Court rules require that parties file proof with the court that they have provided the other party a copy of the complaint and summons or other documents required to be served. There are different ways to provide this proof, depending on who completed the service. Would you like the forms and instructions on how to provide proof of service? B.It can mean a whole lot of things, but I’m too busy to explain them all to you. C.You need to ask an attorney that question. D. I don’t know.

Legal Definitions vs. Legal Interpretations You are asked: My neighbors leave their kids at home all day without supervision. Isn’t that child neglect? You answer: A.It could be, depending on the age of the children. B.What kind of parents would leave their kids by themselves? You should do something about this. C.Rather than stir up trouble, maybe you should just go talk to them first. D.That is a legal determination I can’t make. But I can refer you to Child Protective Services who may be able to assist you if you feel the children are in danger. Plus, you can always contact the police.

Idaho Court Assistance Services27 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

Procedural Explanations vs. Procedural Advice You are asked: Can you tell me how to file a small claims action? You answer: A.You will have to find out by yourself. If you are going to represent yourself, you are held to the same standards of knowledge about the law as an attorney. B.You will have to go to the court’s Court Assistance Website to get that information C.Are you sure you want to handle this claim by yourself? Even small claims can be very complicated for non-lawyers. D.You will have to fill out a claim form, pay a filing fee, and have the claim served on the defendant. Here are court approved forms and instructions you can use to do this.

Procedural Explanations vs. Procedural Advice You are asked: Would it be better for me to file my claim in magistrate court or in the small claims court? You answer: A.Small claims court for sure. That way you won’t have to deal with any lawyers. B.If you think your claim will be contested, you probably should just start in magistrate court because that is where the case will go if there is an appeal, and you have to start all over. C.That would be legal advice you should ask a lawyer. I am not a lawyer. D.I can’t tell you which would be the best choice for you since that would be legal advice. But I can tell you how to file in both courts and then you can decide for yourself.

Idaho Court Assistance Services30 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

Citing Statues or Rules vs. Researching Statutes or Rules You are asked: Can I get a copy of the Petition for Civil Protection Order my neighbor filed yesterday? Is that a public record? You answer: A.What happened? Were the policed called? Anyone arrested? Anyone Hurt? B.Why don’t you just ask her to see her copy? C.I’m not sure, but if you are her friend, I really don’t see any problem with providing you a copy. D.Administrative Rule 32 defines what court records are available to the public. In a Civil Protection proceeding, only the final order issued by the judge is available to the public.

Citing Statues or Rules vs. Researching Statutes or Rules You are asked: I want to make sure I file my case in time. Can you tell me what the statute of limitations governs a tort claim” You answer: A.If I were you, I’d file it right away just in case. B.I’m not sure. Let me go get the Idaho statutes and see what we can find. C.Two years. D.I can’t research the law for you, but can tell you where you can find copies of the Idaho Statutes so you can look for yourself, or you can contact an attorney to help you.

Idaho Court Assistance Services33 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

Public Case Information vs. Confidential Case Information You are asked: I reported my neighbor for child neglect and the police removed the children from his home. Can you tell me what happened in court today on that case? You answer: A.Sure, let me pull that file and take a look. B.I guess it would be all right for you to look at the case file since you were the one who reported the neglect. C.I’m sorry, but all child protection files are confidential and not available to the public. D.I don’t know if I can tell you that information.

Idaho Court Assistance Services35 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

Public Case Information vs. Confidential Case Information You are asked: Can I get the criminal history and civil judgment records for a person I’m about to hire? You answer: A.Do you really think that is any of your business?. B.I really don’t have the time to check all of the records for you. C.Those would be public records. If you have a specific name and case number, I can get you that record. Otherwise, you can easily check for multiple records for you self on the Internet at the Court’s Data Warehouse. D.Write down his name and I’ll check all of the records when I have some free time.

Idaho Court Assistance Services37 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

Options vs. Opinions You are asked: My neighbor owes me Money, what is the best court to sue him in? You answer: A.The Peoples Court! B.I don’t know. C.If the amount of Money is $5, or less you may file either in Small Claims or Magistrates. If it is over $5,000.00, but not more than $10,000.00, you must file in Magistrates. If it is over $10, you must be filed in District Court. D. Judge Judd yells at everyone, if someone owed me money, I’d sue them in front of Judge Judd.

Idaho Court Assistance Services39 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

Access v. Deny/Discourage Access or Encourage Litigation You are Asked: Do I need a lawyer? You Answer: A.Yes, and I know a good one who doesn’t charge much. B.That is up to you. Would you like me to tell you how you might find an attorney? C.No! All they do is charge you money and do nothing. D.That depends. What kind of case do you have?

Idaho Court Assistance Services41 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

General Referrals and Subjective/Biased Referrals You are Asked, Can you recommend a pit-bull, family law attorney? You Answer: A.Yes, better call Saul! B.That is up to you. Would you like me to tell you how you might find an attorney? C.No! My sister cousin’s brother lost custody in Indiana. D.I think everyone should be represented. How much money are you looking to spend?

Idaho Court Assistance Services43 GUIDELINES Clerk CAN ProvideClerk CANNOT Provide Legal DefinitionsLegal Interpretations Procedural DefinitionsProcedural Advice Cite Statutes, Rules, OrdinancesResearch Statutes, Rules, Ordinances Public Case InformationConfidential Case Information General Court OperationsConfidential or Restricted Information OptionsOpinions AccessDeny, Discourage Access or Encourage Litigation General ReferralsSubjective/Biased Referrals Forms and Completion InstructionsFiling Out of Forms

Forms and Completion Instructions and Filing out forms You are asked. These forms are really complicated, will you fill them out for me? You answer: A.No. B.You will have to fill them out but you can get help from the Court Assistance Office. C.Sure! But it’ll cost you. D.Saul will help you for $350/hr.

When will my divorce ever be over? A.Hard to say. Judge Dennard is pretty slow in closing his cases. B.Let me go ask your judge. C.Six months, tops. D.That depends on whether your case is contested or uncontested. You can contact the judge’s clerk if you need to schedule a trial or hearing or to get information about the status of your case.

Should I ask for sole custody? A.I would if I were you. It’s always best to ask for everything and then negotiate. B.That depends. Does your husband use drugs, or something like that? C.You can ask for it now if you want. You can always change your mind. D.That would be legal advice. You need to consult an attorney for help on that.

It is ok to tell a party how to ask for a continuance. A.True B.False

Bonus Round These next questions are questions that we get every day. They may be in more than one category. These are harder.

I had an Alarm System installed, I tried to cancel the Service and the company says I cannot cancel, what can I do? A.Advise him to file an action for a Declaratory Judgment in District Court. B.Give him a small claims form and hope he goes away. C.I don’t know. D.Tell him to seek legal counsel.

How do I register my prescription for medical marijuana? A.Tell him to come back with form (c) 28(b/z) B.Call Security C.I don’t know D.Tell him to seek legal counsel

How do I complain about ______________? A.A. Trial court Administrator. B.B. Judicial Council. C.C. Idaho State Bar. D.D. Clerk of the Court. E.E. I don’t know. F.F. One of the above, it depends …

Is a corporation required to have an attorney in a small claims case? A.A. Yes. B.B. No. C.C. If they are the Plaintiff D.D. I don’t know.

Is a corporation required to have an attorney in a small claims case? Idaho Rules of Civil Procedure Rule 81(d). Appearance and Witnesses at Small Claim Proceeding. (1) Appearance and Attorneys. Any party in a small claims action may appear in person or by an authorized non-attorney employee. No attorney can appear with or for a party in any hearing on a small claim action; provided, an attorney may appear in any proceeding after entry of a small claims judgment relating to the execution of the judgment, including any proceeding for the examination of the judgment debtor in aid of execution of the judgment. Any attorney at law or law firm may be a party to a small claims proceeding and may prosecute any claim the attorney or law firm may have, except any claim obtained by assignment, and may appear before the court as any other plaintiff or defendant in the case. (Amended March 29, 2001, effective July 1, 2001.)

I bought a house before we got married, we _______(refinanced, quitclaim deeded, took out a line of credit, remodeled, etc.), is it my separate property? A. Of Course it is. B.No … C.I cannot determine that, you should consult legal counsel. D.I don’t know.

We _________ (got married while he was in prison, were drunk when we got married, got married two days ago, etc.) can I file for annulment? A.No. B.yes. C.Yell DUCK! and point. Then when they are distracted, sneak out of the building. D.I don’t know, you may want to consult legal counsel.

Concluding Remarks You are the often the first and primary contact the public has with the court system. If all segments of the public are to have meaning full access to the court system it is you who will make that a reality. The difference between legal education and legal advice is clear and unambiguous. Armed with this knowledge you can help our patrons confident that you are not providing legal advice. “I don’t know,” is a powerful, liberating statement, don’t be afraid to use it.